No Shirt, No Shoes, No Civil Rights?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

If you own a business, can you set a dress code for anyone who comes in? In New York, this seemingly simple question has become an issue for the courts.

Several businesses owned by Hasidim of the Satmar sect in Williamsburg, Brooklyn, posted signs saying "No shorts, no barefoot, no sleeveless, no low-cut neckline allowed in this store." The New York City Human Rights Commission charged the stores with discriminating against women and non-Satmar or least non-ultraorthodox customers. In a trial scheduled to start today, an administrative law judge was supposed to decide whose ox is being gored: is it the tank-topped, short-shorted customer or the proprietor whose fundamental rights are being violated?

Instead the parties settled at the last minute. According to people familiar with the deal, the commission dropped the charges, which could have brought fines of $75,000 per business. The stores agreed to change the signs to read "Modest Dress Appreciated -- All People Welcome." The settlement is unfortunate, because it doesn't resolve the underlying legal principles, whose consequences stretch well beyond Williamsburg and the struggle betweentrustafariansand traditionalists.

To the Human Rights Commission that brought the charges, context was everything. The commission claimed the signs were intended to keep Williamsburg's burgeoning non-Hasidic population out of their community's places of business. Not for nothing, the commission perceived the members of the religious sect as insular and exclusionary.

The Satmar Hasidim might well agree with this categorization. Originating in 19th-century in the town of Satu Mare, then in Hungary, now in Romania, the group has the distinction of being one of the most ideologically pure religious groups anywhere on earth. Its grand rabbis reject Zionism as an outrageous attempt to force redemption that properly belongs in the hands of God. Over the years, Satmar members have been in pitched battles with the better-known Hasidim of Chabad Lubavitch, condemning their counterparts' messianic innovations. Today, the community is painfully split into two mutually antagonistic parts, each following a different son of the late grand rabbi. For Satmar, separation from the world -- and condemnation of one's enemies as heretical -- is a viable and indeed laudable way of life.

The lawyers for the Hasidim, representing them pro bono, understood that this outlook wasn't a promising legal approach. So, on behalf of the shopkeepers, they made two basic arguments. First, they said, the dress code is no different from a beachside sign saying, "No shirt, no shoes, no service" - or from the dress code at the Four Seasons restaurant on Park Avenue. (It's hard not to find the lawyers' reference to the Four Seasons charming. There's really no dress code there -- if you're HBO chief Richard Plepler, a regular who disdains neckties.) Second, the lawyers asserted a First Amendment religious liberty claim: They said the shopowners had been targeted for enforcement because their dress code is religiously motivated. In essence, they accused the Human Rights Commission of discriminating against them.

The first of these arguments -- the one that brings together McDonald's and the Four Seasons in the same sentence -- was almost certainly correct. If there were evidence that the Satmar proprietors were excluding modestly dressed abuelas or hipsters wearing 50s-style poodle skirts, that would be a different matter -- then the dress code might actually have been a cover for discrimination. Ditto if the dress code were enforced against women but not against men in Stanley Kowalski T-shirts.

Absent such evidence, however, a dress code based on rabbinic principles of modesty is no better or worse from a legal perspective than one based on anti-Jersey Shore aesthetics or making Pete Peterson feel at home. Assuming the dress code is being applied evenly, the proprietors should have won. There is (alas) no human right to show skin.

It is the second argument, however -- the one based on religious liberty -- that presumably brought the pro-bono lawyers out of the woodwork. This argument matters even after the settlement, not least because it subtly echoes the argument of Hobby Lobby, the chain of crafts stores that is arguing in the Supreme Court for a corporate right of religious liberty against the Affordable Care Act's mandatory contraceptive coverage.

And this argument is dead wrong. The law against discrimination is a neutral, generally applicable law. It doesn't target any discriminator in particular; and it doesn't care about the underlying motivation for racism or sexism. If the government can't bring anti-discrimination cases against people who discriminate unlawfully for religious reasons, then religious discriminators would get a de facto exception from the law.

Such an exception for religious discriminators may sound like a good idea -- but it isn't. Suppose I claim the religious liberty right not to serve Latino customers in my business because my religion dictates that I stay among my own kind and avoid contact with seductive outsiders. The Constitution recognizes no such right, nor should it. If I run a business open to the public -- in technical legal jargon, a "public accommodation" -- then I can't choose customers on the basis of a prohibited category such as race, religion or sex. The constitutional interest in affording everyone equal protection of the laws and combating discrimination trumps my religious values, no matter how sincerely they may be held.

Under the Constitution, I have a perfect right to be as racist, sexist and exclusionary as I like in my private life and affairs. But business is fundamentally different. Even if I own my store and work there myself, the fact that I am open to the public puts me in the category of commerce, which Congress may regulate if it affects interstate business and the local government may regulate regardless of its reach.

This helps explain why in a perfect world -- say, one before the Citizens United decision -- the Hobby Lobby corporation wouldn't enjoy religious liberty rights. The First Amendment protects the human person in the exercise of his or her conscience before God. It shouldn't allow you to serve Mammon while simultaneously claiming you are beholden to the Lord of Hosts.

Provided they were promoting modesty and not discriminating based on race or sex, the Satmar Hasidim should have won their case. But not because the First Amendment says so. They should have won because dress codes, no matter how anachronistic, are part of the craziness that is America. That'syour tie I'm talking about, Mort Zuckerman.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more